Today, the Ninth Circuit United States Court of Appeals heard oral arguments in an important lawsuit concerning the application of the Endangered Species Act (ESA) to the Klamath Project. The hearing, before a three-judge panel in San Francisco, was based on appeals by Klamath Water Users Association (KWUA) and Klamath Irrigation District, of a February 6, 2023, decision by a federal district court.
In this case, KWUA, represented by attorney Brittany Johnson, argues that the U.S. Bureau of Reclamation (Reclamation) is using outdated legal guidance in its operation or supervision of the Project. KWUA contends that, under modern authority, Reclamation lacks discretionary or authority to curtail, or direct irrigation districts to curtail, water diversion and delivery for the purpose of attempting to benefit ESA-listed species.
Klamath Irrigation District, represented by attorney Nathan Rietmann, argues that the ESA does not provide authority for Reclamation to release water stored by law for irrigation purposes, to augment flows in the Klamath River. He argued that the ESA does not give Reclamation any additional authority or property/water rights and that Reclamation has assumed authorities it does not have.
The Ninth Circuit panel hearing the case includes Judge Mary M. Schroeder, Judge Robert M. Gould, and Judge Ryan D. Nelson. There is no set date or deadline for a decision in the case.
In the meantime, Reclamation is currently engaged in an ESA “re-consultation” process based on the old guidance. KWUA has numerous concerns with that process, not limited to issues now being decided in the Ninth Circuit.
